Americans in territories have earned the right to pick president

March 18, 2014

If Americans in U.S. territories are good enough to serve in times of war, they deserve the right to vote for their commander in chief.

On Tuesday, President Obama will award the Medal of Honor (posthumously) to four soldiers from Puerto Rico and others who exhibited extraordinary bravery and personal sacrifice during the Korean and Vietnam wars. A military review concluded they were deserving of this highest honor after having been originally passed over because of discrimination.

This is progress. But a lingering shadow of discrimination continues to impact more than 4 million Americans in Puerto Rico and other U.S. territories who are denied full enjoyment of the right to vote because of where they live. Ninety-eight percent are racial and ethnic minorities. The proud tradition of military service in each of the territories serves to highlight the injustice of this second-class status.

Master Sgt. Juan E. Negrón was the only one of the four Medal of Honor awardees from Puerto Rico to survive his battle-time wounds. When he returned home following 23 years of military service, he encountered a harsh reality. When it came to participating in American democracy at home, his heroic service in defense of freedom and democracy abroad meant nothing.

Negrón died in 1996, but his experience being denied the right to vote is not unique. More than 125,000 veterans today are unable to vote for president and are denied voting representation in Congress because they live in a U.S. territory. And U.S. citizens who call these areas home must register for the draft just like other Americans.

In January, a battalion of nearly 600 soldiers from Guam returned home following a tour in Afghanistan. Guam's casualty rate in Iraq and Afghanistan is more than four times the national average. The sacrifice is similarly outsized in the U.S. Virgin Islands and the Northern Mariana Islands.

The injustice has an added dimension in American Samoa, where casualty rates in Iraq and Afghanistan are more than seven times the national average. Federal law denies Americans born in this U.S. territory the right to even be recognized as citizens. They are labeled instead with the inferior status of "nationals, but not citizens, of the United States."

As so-called "noncitizen U.S. nationals," they are disenfranchised even if they live in one of the 50 states. Unbelievably, these passport-holding Americans must naturalize to be able to vote in a state, a costly and burdensome process that amounts to a poll tax and literacy test all rolled into one.

One of those affected is 1st Lt. Va'aleama Fosi, who was born in American Samoa and moved to Hawaii in 1985. Despite a decade of service as an officer in the Hawaii and Army National Guard, he is ineligible to vote in Hawaii elections.

Fosi and others born in American Samoa are challenging this discrimination in a landmark federal lawsuit against the U.S. government that is currently before the D.C. Circuit.

The Department of Justice is defending these discriminatory laws by relying on a series of controversial Supreme Court decisions from the early 1900s known as the Insular Cases. The Insular Cases broke with prior precedent to create the idea that there are "two classes" of U.S. territories: "incorporated" territories on the path to full political membership where the Constitution applies in full, and "unincorporated" territories where there is no promise of political rights, and only certain constitutional guarantees apply.

Last month this discriminatory framework was front and center at a Harvard Law School conference titled "Reconsidering the Insular Cases." In the keynote address, First Circuit Judge Juan Torruella declared, "The Insular Cases represent classic Plessy v. Ferguson legal doctrine and thought that should be totally eradicated from present-day constitutional reasoning."

It is commendable that Obama is overcoming past discrimination by awarding deserving military heroes from Puerto Rico the Medal of Honor. But the administration should stop relying on the Insular Cases to continue the perpetuation of discrimination in U.S. territories today.

In his 2014 State of the Union address, Obama declared that "citizenship means standing up for everyone's right to vote."

Everyone really should mean everyone. Americans in the territories have earned the right to vote.

Neil Weare is president and founder of the We the People Project, an organization that works to achieve equal rights and representation for Americans living in U.S. territories and the District of Columbia. He is also lead counsel in Tuaua v. United States, representing 1st Lt. Va'aleama Fosi and others born in American Samoa who believe the Constitution guarantees them citizenship by virtue of their birth on U.S. soil.